Service Agreement
This Service Agreement (“Agreement”) governs your access to and use of the service(s) (“Service”) provided by Fuser® (“we” or “us”) at our website, currently located at http://Fuser.com (“Site”).
The Service provides you with access to (1) social networking and communications services that are provided by Fuser® (“Fuser® Services”), and (2) software tools (the “Tools”) to access certain web-based services that are offered by third parties and to which you have separately subscribed directly with such third parties (“Third Party Services”). As described in this Agreement, however, you agree that Fuser® shall bear no responsibility for such Third Party Services or your continued access to them via the Tools.
This Agreement applies to you whether you are a visitor to this Site or a “User” (i.e., you have registered to use the Service). Certain features of the Service may be subject to additional guidelines, terms, or rules (“Additional Terms”), which will be posted in connection with such features. All such Additional Terms and the Fuser® Privacy Policy (http://Fuser.com/privacy.html) are hereby incorporated by reference into this Agreement.
This Agreement may be amended by Fuser® from time to time. If we make material changes to the Agreement, we will notify you at your primary email address, as specified in your registration information. You agree that such amended Agreement will be effective 30 days after being sent to you, and your continued access to the Site or use of the Service after that time shall constitute your acceptance of the amended Agreement.
1. Eligibility. The Service is intended solely for access and use by individuals that are thirteen (13) years of age or older. By accessing and using the Service, you represent that you are at least thirteen (13) years old. By using the Service, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. If you are merely surfing or browsing through the Site and have not yet registered to become a User, your use of the Site is still subject to this Agreement; if you do not agree to this Agreement, do not use the Service or access the Site.
2. Licenses.
2.1 The Service. Subject to the terms and conditions of this Agreement, Fuser® grants you a license to access and use the Service and the software and systems enabling the server side of the Service, only to the extent necessary to use the Service as described by Fuser® on the Site. Fuser® reserves the right to change or discontinue the Service (or any feature thereof) at any time, with or without notice.
2.2 Downloadable Tools. Subject to the terms of this Agreement, Fuser® grants you a non-transferable, non-exclusive, non-sublicensable, worldwide license to reproduce (solely to install and execute) the Tools that we make available on the Site for download (the “Downloadable Tools”), including the applet for accessing Third Party Services, in executable object code format only, solely for your own private use or internal business operations. We may, in our sole discretion, inform you that we have released an updated version of the Downloadable Tools, at which point you will download the updated version and replace the prior version with it. You agree not to modify, make derivative works of, disassemble, reverse compile, reverse engineer, or distribute any part of the Downloadable Tools. All rights in and to any Fuser® software not expressly granted to you in this Agreement are expressly reserved to us and our licensors.
2.3 Outgoing Emails. You hereby consent to Fuser® adding a brief marketing message to any of the emails you send when using the Tools.
3. Passwords. When you sign up to become a User, you will also be asked to choose a username and password, which comprise your “Service Key” and enable your access to the Service. In order to access and use a Third Party Service that requires a login using the Tools, you must provide Fuser® your username and password for such Third Party Service (i.e., your “TPS Key”). You are solely responsible for any and all use of your Service Key and for maintaining the confidentiality of your Service password. You agree not to provide your Service Key to any other person or to use the Service Key of another User at any time. You must exit from your account at the end of each session. You agree to notify us immediately if you suspect any unauthorized use of or access to your Service Key. If you provide us with a TPS Key, we will use reasonable efforts to maintain the confidentiality and security of such TPS Key, as described in Section 4 (Security).
4. Security. Fuser® will use industry standard efforts to maintain the confidentiality of your Service Key and the TPS Keys you provide to Fuser®. Fuser® will use Secure Socket Layer (SSL) technology (or comparable technology), including 128-bit encryption, to provide security for sensitive transmissions. In addition, Fuser® will use reasonable technical and procedural safeguards for your Service Key and your TPS Keys stored on its computers. If you forget your password and your secret question answer and you lose access to your primary email account, you will lose access to your account on the Service as well as any settings or saved information. Although Fuser® will implement and follow these measures to protect against unauthorized access to or interception of your keys, you acknowledge and agree that Fuser® cannot fully eliminate security risks and cannot guarantee that unauthorized access to your information will never occur.
5. Third Party Services. The Service provides you with Tools to access Third Party Services. You hereby represent and warrant that you have the necessary rights to access and use those Third Party Services through the Tools and that your use of the Third Party Services is in compliance with the terms of use applicable to such Third Party Services.
You acknowledge that the third parties that provide the Third Party Services may, at any time, change the means by which the Third Party Services are accessed, and consequently, your ability to use the Tools to facilitate your access to any Third Party Services may be temporarily or permanently disabled. You agree that Fuser® shall have no responsibility or liability to you whatsoever in relation to the Third Party Services or continuing access to the Third Party Services, and that Fuser® makes no representations or warranties with respect to the Third Party Services.
6. Access and Interference. You will not use any device, software, or routine to interfere or attempt to interfere with any application, function, or use of the Service (including the Tools). You shall not decompile, disassemble, decrypt, extract, reverse engineer, or otherwise attempt to derive the source code of the Tools or the software (including the tools, methods, processes, and infrastructure) enabling or underlying the Service.
7. Fees for Service. Fuser® currently makes the Service available to you without charge, but retains the right to charge for the Service in the future, after providing reasonable notice. You are responsible for any fees for Third Party Services that result from your access to or use of them.
8. Proprietary Rights in the Service. Fuser® owns and retains all proprietary rights in the Service (including the Tools). The Service contains the copyrighted material, trademarks, and other proprietary information (“Intellectual Property”) of Fuser®, and its licensors, including other Fuser® Users. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such Intellectual Property, including, without limitation, any intellectual property rights in any Content.
9. Content Posted on the Service.
9.1 Fuser® Removal. You understand and agree that, to the extent it is able to do so, Fuser® may (but is not obligated to): review any content, communication, information, works of authorship, messages, photos, videos, URLs, profiles and the like (collectively, "Content") that is published, displayed, or transmitted (hereinafter, "posted") on or through the Service, and delete any such Content for any reason in its sole discretion. You further understand and agree that Fuser® may take any action, including deletion of Content or the barring of access to the Service (including the Tools), in response to conduct or Content that in the sole judgment of Fuser® violates this Agreement or is offensive, illegal, or violates the rights of, harms, or threatens the safety of, other Users or third parties. You are solely responsible for the Content that you post on the Service or through the use of the Tools.
9.2 License. You retain ownership of all your Content. By posting Content to any public area (such as the Fuser® forums or blog) of the Fuser® Services ("Publicly Posted Content"), you grant to Fuser® an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform (including by means of a digital audio transmission), and otherwise use or exploit such Publicly Posted Content and to prepare derivative works of, or incorporate into other works, such Publicly Posted Content, and to grant sublicenses of the foregoing rights. In addition, you represent and warrant that you have the right to grant the foregoing license and to post the Publicly Posted Content and that you will not post any illegal or Prohibited Content and will not infringe, misappropriate, violate or contravene any third party rights (including, without limitation, any intellectual property rights).
9.3 Prohibited Content. The following is a partial list of the kind of Content that is prohibited on the Fuser® Services (“Prohibited Content”), which Fuser® may take into account in taking any action in its sole discretion, including actions to delete or prevent access to Content, to limit or bar access to the Site, or to terminate or limit any relationship between you and Fuser® or the Site. Fuser® reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion for any violation of this provision, including without limitation, removing Prohibited Content from the Fuser® Services, notifying the appropriate authorities regarding and identifying the source of Prohibited Content and terminating the User status of such violators. Prohibited Content includes, without limitation, Content that:
10. Use of the Service. You must use the Service (including the Tools) in a manner consistent with any and all applicable laws and regulations. You may not include in your User profile for the Fuser® Services any telephone numbers, street addresses, or last names. You may not use any forum available on the Fuser® Services for advertising to, or solicitation of, other Users to buy or sell any products or services. In order to protect our Users from such advertising or solicitation, Fuser® reserves the right to restrict the number of emails and other communications (including sharing of Content) which a User may send to other Users through the Fuser® Services in any period to a number which Fuser® deems appropriate in its sole discretion.
11. Copyright Policy. You may not post, distribute, or reproduce Fuser® in any way any copyrighted material, trademarks, or other proprietary information unless you have the right to do so. If you believe that your work has been copied and posted on the Fuser® Services in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. That means, at a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Site of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Fuser®’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following:
Confluence Commons, Inc., d/b/a Fuser®
Attn: Copyright Agent
1360 Walnut Street, Suite 102
Boulder, CO 80302
copyright@confluencecommons.com
12. Term. Subject to this Section, this Agreement will remain in full force and effect while you use the Service and/or are a User. You may terminate your membership at any time, for any reason by following the instructions on the “Help” pages applicable at the time of your termination. Fuser® may terminate this Agreement, or suspend or terminate your access to the Service, effective upon sending notice to you at the email address you provide in your User registration or such other email address as you may later provide to Fuser®. Upon termination of this Agreement by either party, your right to access and use the Service will terminate immediately. You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to our termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 8, 9.2, and 12-19.
13. User Disputes and Release. You are solely responsible for your interactions with other Users. Fuser® reserves the right, but has no obligation, to monitor, or take any action Fuser® deems appropriate regarding, disputes between you and other Users. To the extent permitted under applicable laws, you hereby release Fuser® from any and all claims or liability related to: (a) any Content posted on the Fuser® Services or through the Tools; (b) the conduct, whether online or offline, of any other User; and (c) termination or denial of access to or use of the Service.
You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
14. Disclaimer. To the extent permitted under applicable laws, the Service (including the Tools) is provided "As-is" and as available and Fuser® expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Fuser® does not guarantee and does not promise any specific results from the use of the Service. Fuser® makes no warranty that the service will be uninterrupted, free of viruses or other harmful code, timely, secure, or error-free. You agree that Fuser® is not responsible for the timeliness, deletion, mis-delivery, or failure to store any communications or personalization settings. Fuser® does not assume any obligation to monitor activities conducted on the Fuser® Services or through the Tools.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
15. Limitation on Liability. To the extent permitted under applicable laws, Fuser® shall not be liable to you, or any third party, for any indirect, consequential, exemplary, incidental, special or punitive damages (including also lost profits) arising from your use of the Service, even if Fuser® has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Fuser®’s liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the greater of (1) any amount paid by you to Fuser® for the Service; and (2) Fifty U.S. Dollars (US$50). The existence of one or more claims will not serve to enlarge this limit. You acknowledge and agree that the limitations of Fuser®’s liability are (a) reasonable in light of your ability to use the service at the fees charged by Fuser® (if any), and (b) essential and fundamental parts of this agreement which are necessary to induce Fuser® to enter into this agreement.
Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply to you.
16. Indemnity. You agree to indemnify and hold Fuser®, its subsidiaries, affiliates, officers, agents, and other partners and their employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of or relating to: (a) your use of the Service, (b) Third Party Services and your access to or use of Third Party Services via the Tools, and/or (c) arising from your breach of this Agreement.
17. Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. If a dispute arising under this Agreement results in litigation, the non-prevailing party will pay the court costs and reasonable attorneys’ fees of the prevailing party. Any dispute between the parties will be resolved by arbitration in Denver, Colorado, under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer-Related Disputes (but excluding the Supplementary Rules for Class Arbitrations) of the American Arbitration Association (“AAA”). The parties will share the costs of the arbitration equally. The AAA will appoint the arbitrator, who will not have the power to hear any consolidation, joinder, or class arbitration.
18. Electronic Communications. The communications between you and Fuser® use electronic means, whether you visit the Site or send us emails, or whether Fuser® posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Fuser® in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fuser® provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. You may also receive a copy of this Agreement by emailing us at: support@confluencecommons.com, Subject: “Terms of Service”.
19. Other. This Agreement contains the entire agreement between you and Fuser® regarding the use of the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Notwithstanding any other provisions herein, the parties agree that no person or entity shall be deemed a third-party beneficiary of this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of CC to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement.
20. Copyright/Trademark Information. Copyright © 2006 - 2007, Confluence Commons, Inc., d/b/a Fuser®. All rights reserved. The trademarks, logos and service marks (“Marks”) displayed on the Fuser® Services are our property or may be the property of third parties. Certain uses of Marks require the permission of the owner. If you are interested in using our Marks for any purpose, please contact copyright@confluencecommons.com to determine whether such a use requires authorization.
21. Disclosures. Confluence Commons, Inc., d/b/a Fuser® is located at 1360 Walnut Street, Suite 102 Boulder CO 80302. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Current providers of such protections can be found at http://www.google.com/search?en&q=parental+control+applications
This Service Agreement was last updated on April 7, 2008.